The Union Recorder

Community News Network

December 20, 2013

Supreme Court's year ends with plural marriage

Deck the halls, then book several: Plural marriage is now legal in the state of Utah, just in time for the holidays. We have the Supreme Court's landmark same- sex marriage decision to thank for it.

Yes, the same Supreme Court that struck down the most important provision of the Voting Rights Act in the year's other landmark case. And that retrospectively gutted the universal coverage promised by the Patient Protection and Affordable Care Act. So is the Supreme Court of 2013 radically liberal or radically conservative?

The answer, it turns out, is both. A review of the current court's year confirms that it is the most activist since the 1920s, with plenty for both sides of the partisan aisle to hate and plenty for each to love. Because the court is a composite body in which all votes count equally, no individual today determines its overall strategy. But hidden in the confusion of divergent opinions lies a pattern that might be described as Chief Justice John Roberts's message to the Republican Party about its future.

The Roberts paradigm runs something like this: Lose gracefully on sex and personal autonomy; win on race, class and social welfare, with a pinpoint strategy on targeted killings and drone strikes. Remarkably, by following this plan, the Roberts court has turned into the most politically sophisticated wing of the Republican Party. Put another way, "John Roberts for President."

Start with the sex stuff. Liberals' favorite civil-rights case of the year is U.S. v. Windsor, which struck down the federal Defense of Marriage Act as a violation of the status and dignity of same-sex couples. By leaving in place state bans on gay marriage, the decision created a potential mess for couples married in the eyes of the federal government but not their own states. Yet liberals didn't care, because the decision, written by Justice Anthony Kennedy, was the legal culmination of the struggle for gay rights.

When the Supreme Court decided earlier gay-rights cases, such as 2003's Lawrence v. Texas, which struck down anti-sodomy laws, the conservatives, led by Justice Antonin Scalia, went a little bit berserk. In his Lawrence dissent, Scalia fulminated that the decision effectively gutted state laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity.

In 1996, dissenting in Romer v. Evans, the first important gay-rights case, Scalia accused the majority of having "mistaken a Kulturkampf" - German for culture war - "for a fit of spite."

In 2013, things were different. Scalia still dissented, but instead of invoking a culture war that his side had already lost, he criticized the majority's legal craft, characterizing its rationale as "rootless and shifting." Then, in defensive mode, he insisted that the supporters of traditional marriage would never want to "degrade, demean, and humiliate gay people."

Roberts joined the dissent, which was so different from the earlier Scalia efforts as to almost seem written by a different hand. It was as if this new Scalia, guided by the graceful Roberts, wanted to avoid the screaming headlines that his invective once seemed designed to elicit. The message to the Republican Party was fairly clear: Gay marriage is a losing issue, so let's go gentle into that good night of defeat, and take our victories where we can get them.

Room for those conservative victories turned out to be pretty wide in 2013. On race, the Supreme Court chose not to strike down affirmative action once and for all in Fisher v. Texas. It sent the case back to the lower courts to do their analysis again, buying time for the public's disillusionment with affirmative action to grow further.

The court saved its powder for Shelby County v. Holder, which struck down section 4 of the Voting Rights Act. That law, the heart of the electoral side of the civil-rights movement, required formerly discriminatory districts to preclear any districting changes with the Justice Department and a special three-judge court.

Technical and ill-understood except by experts in voting, the law was the perfect target for a Roberts special-forces operation. His opinion emphasized that the law was perfectly terrific when passed in 1965 to fight racism. He added almost diffidently that it was now based on "decades-old data and eradicated practices." Racism was over because, well, um . . . Barack Obama was elected president, wasn't he?

Justice Ruth Bader Ginsberg wrote a dissent demonstrating extensive evidence of ongoing racism in redistricting and voting. But her capacity for outrage was curtailed by the fact that her constitutional position was simply that the court should defer to Congress about whether the law was still needed. Deference is boring - and anyway, she and the other liberals voted against deference in striking down the Defense of Marriage Act.

No summary of the most important Supreme Court events of 2013 would be complete without mentioning the sleeper cell that Roberts brilliantly planted in his 2012 opinion in National Federation of Independent Business v. Sibelius, upholding the individual mandate of the Affordable Care Act. The headlines said Roberts had broken ranks with conservatives and showed extraordinary judicial restraint. Less noticed was his holding that the states could not be pressured to extend Medicaid to the poorest uninsured Americans - a holding joined by liberal pragmatist justices Stephen Breyer and Elena Kagan. Only this year did it become clear that roughly half the states would not join Obamacare, robbing the law of its ethical aspiration to ensure that all citizens have health insurance. Roberts the tactician had won a major victory without anybody noticing.

Rank-and-file Republicans and their political leaders may not be noticing the Roberts paradigm, but they should. Lose gracefully where you must, win quietly where you can. Fight your stealth battles, but be a gentleman about it. Roberts in 2016.

1
Text Only
Community News Network
  • Victimized by the 'marriage penalty'

    In a few short months, I'll pass the milestone that every little girl dreams of: the day she swears - before family and God, in sickness and in health, all in the name of love - that she's willing to pay a much higher tax rate.

    April 15, 2014

  • Allergies are the real midlife crisis

    One of the biggest mysteries is why the disease comes and goes, and then comes and goes again. People tend to experience intense allergies between the ages of 5 and 16, then get a couple of decades off before the symptoms return in the 30s, only to diminish around retirement age.

    April 15, 2014

  • treadmill-very-fast.jpg Tax deduction for a gym membership?

    April marks another tax season when millions of Americans will deduct expenses related to home ownership, children and education from their annual tax bill. These deductions exist because of their perceived value to society; they encourage behaviors that keep the wheels of the economy turning. So why shouldn't the tax code be revised to reward preventive health?

    April 15, 2014 1 Photo

  • Google acquires drone maker Titan Aerospace to spread Internet

    Google is adding drones to its fleets of robots and driverless cars.
    The Internet search company said it acquired Titan Aerospace, the maker of high-altitude, solar-powered satellites that provides customer access to data services around the world. Terms of the deal weren't disclosed.

    April 14, 2014

  • Why Facebook is getting into the banking game

    Who would want to use Facebook as a bank? That's the question that immediately arises from news that the social network intends to get into the electronic money business.

    April 14, 2014

  • Screen shot 2014-04-11 at 4.49.09 PM.png Train, entertain your pets with these 3 smartphone apps

    While they may not have thumbs to use the phone, pets can benefit from smartphone apps designed specifically for them.

    April 11, 2014 1 Photo

  • Stepping forward: The real Colbert

    Letterman changed the late-night TV game between his run on NBC's "Late Night" and starting the "Late Show" franchise in 1993. And while it's tough to replace a pop-culture icon, Colbert, in terms of pedigree and sense of humor, makes the most sense.

    April 11, 2014

  • Millions of Android phones, tablets vulnerable to Heartbleed bug

    Millions of smartphones and tablets running Google's Android operating system have the Heartbleed software bug, in a sign of how broadly the flaw extends beyond the Web and into consumer devices.

    April 11, 2014

  • 25801486.jpg VIDEO: Northern California bus crash kills 10

    At least nine people died in Northern California on Thursday night, in an accident involving a bus, a car and FedEx truck. The bus was filled with high school students from Southern California who were on their way to visit a college campus.

    April 11, 2014 1 Photo

  • Teens trading naked selfies for mugshots

    Will teenagers ever learn? You think yours will. Maybe so. But it's likely that was also the hope of the parents of children who were so shamed by nude photos of themselves that went south - how else can they go - that they killed themselves.

    April 10, 2014

Poll
AP Video
Tributes Mark Boston Bombing Anniversary Raw: Kan. Shooting Suspect Faces Judge US Supports Ukraine's Efforts to Calm Tensions Suspect in Kansas Shootings Faces Murder Charges Ukraine: Military Recaptures Eastern Airport Raw: Storm Topples RVs Near Miss. Gulf Coast NASA Showcases Lunar Eclipse Pistorius Cries During Final Cross-Examination The Boston Marathon Bombing: One Year Later Michael Phelps Set to Come Out of Retirement First Women Move to Army Platoon Artillery Jobs Sex Offenders Charged in Serial Killings Police: Woman Stored Dead Babies in Garage OC Serial Murder Suspects May Have More Victims Family: 2 Shot in Head at Kan. Jewish Center Raw: Horse Jumping Inspires 'Bunny Hop' After Attack, Officials Kill 5 Bears in Florida Popular Science Honors Year's Top Inventions ND Oil Boom Attracting Drug Traffickers
Facebook
Twitter Updates
Follow us on twitter
Parade
Magazine

Click HERE to read all your Parade favorites including Hollywood Wire, Celebrity interviews and photo galleries, Food recipes and cooking tips, Games and lots more.
Stocks
NDN Video
8-year-old Boy Gets His Wish: Fly Like Iron Man Toddler climbs into vending machine Much-Anticipated 'Gone Girl' Trailer Finally Debuts! (VIDEO) Dog and Toddler Wear Matching Outfits in Adorable Photo Series VP Biden: "World witnesses ordinary citizens doing extraordinary things" It's Official! Michael Strahan Joins "GMA" Blood Moon Time-lapse Actress Lake Bell Goes Topless The Five Weirdest Local Taxes in America Applicants Vying for 'World's Toughest Job' Get Heartwarming Surprise Awkward: Crist catches Lt. Gov. insulting him on camera NASA Showcases Lunar Eclipse US Airways Tweets Graphic Photo of Nude Woman Behind the scenes of the Marathon anniversary photo shoot American Airlines Responds After Girl Tweets Alleged Terror Threat 'Joke' Charlie White's "Dancing" Mistake Olympic Great & Baltimore Native Michael Phelps Ends Retirement; Eyes Rio 2014 NFL Draft: Potential Booms And Busts William and Kate Squash Baby No. 2 Rumors With a Wine-Tasting Trip Who Showed Up at Coachella?